JUDGMENT Wanchoo, J.
1. This is a second appeal by Kaniz Fatma and Anis Fatma against the decree of the Civil Judge of Allahabad by which he confirmed the decree of the Munsif of Allahabad.
2. The suit was brought by the plaintiffs appellants for six years' maintenance allowance which was due to them from the defendant respondent, Amir Ali Kazim on the basis of a deed of waqf-alal-aulad which had been executed by Mt. Ibadunnissa. In that waqf-deed, the waqif provided that Rs. 75/- should be paid as annuity every year to each of the two appellants. The suit was resisted by the respondent on the ground that as the income of the waqf property had fallen down considerably, the amount fixed by the waqif should be reduced. This plea was accepted by the Courts below and the annuity was fixed by the lower appellate Court at Rs. 34-5-0 per year. The present appeal is against this order.
3. Two points have been raised in the grounds of appeal, one of which, however, relating to expenses of a certain criminal trial has been given up. The only other point that is now being pressed is that the amount of annuity cannot be reduced.
4. The case came up before a learned Single Judge of this Court who has referred it to a Bench for decision in view of the importance of the question raised. The contention, on behalf of the appellants, is that in view of the provisions of the waqf-deed it was not open to the Court below to reduce the annuity because of the reduction in the total income. It is not in dispute that the total income was Rs. 5,564-11-2 about the time that the deed of waqf was executed and that it had fallen down to Rs. 2,758-15-8 during the period for which the annuity was claimed. The waqf-deed provides how the income of the property was to be dealt with. It says, in the first place, that the land revenue and other government charges would be met. Expenses of litigation for preservation of the property come next. Then follows a provision for costs of management which would generally not exceed twenty per cent. of the gross assets. There is then a provision of Rs. 75/- per year to the three daughters of Syed Azhar Husain. Next comes a provision for the expenses of a person for Qurankhwani. Lastly it is provided that the balance, after meeting these expenses, would go to the mutwalli for the maintenance of himself and his family. It is, therefore, urged, on behalf of the appellants, that where the waqif has provided definitely for certain expenses and has then said that the balance would go to the mutwalli and his family, it is not open to the mutwalli to reduce the specific amount that has been provided by the waqif so long as the income is sufficient to cover this amount. If there is a fall in the income, the loss will have to be borne by the mutwalli for whom the remainder has been provided just as if there had been an increase in the income, the mutwalli would have got the benefit of it. Reliance, in this connection, has been placed on Ahmad Ullah Khan v. Ahsan Ali Khan, 1935 A. L. J. 113 : (A. I. R. (22) 1935 ALL. 147). In that case it was held that "The general proposition..... That in case of decrease of income from the waqf property, all the expenses fixed by the waqf should be proportionately reduced, is not applicable to a waqf deed in which the items of expenditure have been classified into groups with properties."
In this case the observations of Ameer Ali, in his Mahommedan Law, volume I at p. 381 to the following effect were referred to :
''When the waqif has provided that each of the beneficiaries should get a specific sum, and owing to lose of income none of them can get the exact amount, the actual income will be divided in proportion to their respective allowances."
5. In my opinion, this passage does not go against the view taken in the case referred to above. The words used by the learned author clearly show that they are confined to a case where the waqif has provided certain specific sums for a certain number of beneficiaries. When the total income available for distribution to the beneficiaries falls short of the total of these specific sums, the amount of loss has to be shared by each beneficiary proportionately. This provision is reasonable and in accord with principles of justice, equity and good conscience. This provision was followed in Badrul Nissa v. Miizaffar Husain, 1937 O. W. N. 429. In that case, the waqif had provided an allowance of Rs. 10/- per month to one person and an allowance of Rs. 15/- per month to the mutwalli. Later the income fell short and it was not possible to pay Rs. 10/- to one and Rs. 15/- to the other. In those circumstances, it was held that the amount specified in the waqf-deed for the two beneficiaries has to be reduced proportionately. In the case before me, however, the waqif has provided for certain expenses to be met first out of the income. Thereafter she provides that the remainder would go to the mutwalli and his heirs. In such a case, so long as the income does not fall short to such an extent that the specific items of expenditure cannot be met out of it, these items have a priority and the person to whom the remainder has been given must take the risk of that remainder going down, as he enjoys the benefit if that remainder goes up. I am, therefore, of opinion that in a case like the present where the waqf-deed provides specific sums for certain purposes and then leaves the remainder to a certain person, the mutwalli cannot reduce the amounts specifically fixed and the loss of income due to a fall therein must be borne by the person to whom the remainder has been given. The result, therefore, is that the appellants should have been given a decree at the rate of Rs. 75/- per year.
6. So far, therefore, as Kaniz Fatma is concerned, she will be entitled to Rs. 450. Out of this sum Rs. 292-8-0 will be deducted for the defence of her husband leaving a balance of Rs. 157-8-0. She will get interest on this amount at the rate of Rs. 6/- per cent. per annum upto the date of the suit and 3 per cent. per annum thereafter till the date of realisation.
7. As for Anis Fatma, she is also entitled to get Rs. 150 for two years. She will get that amount with interest at the rate of Rs. 6 per cent. per annum up to the date of the suit and 3 per cent per annum thereafter till the date of realisation.
8. I, therefore, allow the appeal and modify the decree of the Court below in the manner indicated above. The parties will receive and pay costs according to their success and failure in all the Courts.
Seth J.
9. I concur. I desire, however, to add a few words in view of the importance attached to the case by the learned Judge, on whose reference it has come up for decision before us.
10. It is an admitted fact that the income from the waqf property has diminished by nearly 50 per cent. The question for consideration, therefore, is whether the annuity allowed to the appellants under the deed of waqf should also be proportionately reduced.
11. The basic rule of Muslim law on this point may be found formulated in Tyabji's Muhammadan Law (2nd Edn.) page 523, Section 457 (10) in the following words :
"........ the objects of the 'waqf' must be given effect to in accordance with the directions of the 'waqif', or the declaration of 'waqf'."
12. The same rule appears to have been laid down in Ahmad Ullah Khan v. Ahsan Ali Khan, 1935 A. L. J. 113 : (A. I. R. (22) 1935 ALL. 147), which came up to this Court in appeal against an order of the Court below in which the learned Judge of that Court had, without reference to the terms of the waqf-deed, expressed the opinion that in ease of decrees of income all the expenses provided for by the deed of waqf should be proportionately reduced. Delivering the judgment of this Court, Sulaiman C. J. said:
"...... The learned Judge should not have expressed his opinion in a general way but should have based it on the terms of the particular deed, We do not think that the learned Judge meant to lay down that all the items of expenditure and all allowances and maintenances mentioned in the deed stand on the same footing and they must all be reduced proportionately. Of course, where in the deed itself there is priority given to some items and they have to be met in the first instance and the others have to be met out of the balance in hand, it will be impossible to say that the items in all such groups stand on the same footing. The learned Judge has not examined the terms of the document and it seems prima facie that the general proposition of law as stated by him would not be applicable to the terms of this particular document where the items of expenditure have been classified into groups with priorities."
13. According to this rule the decision of the question should depend on the terms of the waqf deed.
14. The learned counsel for the respondent, however, contends that the decision in Ahmad Ullah Khan's case, 1935 A. L. J. 113 : (A. I. R. (22) 1935 ALL. 147), is opposed to the rule contained in the following passage to be found at page 381 of Ameer Ali's Muhammedan Law, vol. 1 (1st Edn.) :
"When the waqif has provided that each of the beneficiaries should get a specific sum, and owing to loss of income none of them can get the exact amount, the actual amount be divided in proportion to their respective allowances."
This passage is based on the authority of what is stated at page 670 of vol. III of Radd-ul-Muhtar. It is urged by the learned counsel that the authority of Radd-ul-Muhtar and Ameer Ali should be preferred to the authority of Ahmad Ullah Khan's case, (1935 A. L. J. 113 : A. I. R. (22) 1935 ALL. 147). The learned Judge, on whose reference the case has come up for hearing before us, thought that the aforesaid rule contained in Ameer Ali's Mohammedan Law was dissented from in Ahmad Ullah Khan's case, (1935 A. L. J. 113 : A. I. R. (22) 1985 ALL. 147), for he observes:
"This particular passage was considered by Sir Shah Sulaiman and Ganga Nath J. in the case mentioned above, and was in effect dissented from."
15. I find myself unable either to accept the contention of the learned counsel, or to concur in the view of the learned referring Judge.
16. Ahmad Ullah Khan's case, (1935 A. L. J. 113 : A. I. R. (22) 1935 ALL. 147), lays down that when all the items of expenditure, including allowances and maintenances mentioned in the deed of waqf, cannot be met to the fall extent on account of diminution in the income from the waqf property, the question whether all the items of expenditure should be proportionately reduced or whether expenses on some of the items only should be reduced and other items of expenses should be met in full, depends on the terms of the waqf deed, and that, if all the items of expenditure stand on the same footing, they should all be proportionately reduced, but if the waqif has given priority to some items of expenditure, those having priority have to be met in full in the first instance, and the balance alone is to be spent on the other items. The passage quoted from Ameer All's Mahommedan Law deals with the particular case where specified amounts are given to more than one beneficiary, in other words, when those beneficiaries stand on the same footing and no priority exists between them, It provides that in such a case the allowances should be proportionately reduced. This is exactly what has been laid down in Ahmad Ullah Khan v. Ahsan Ali Khan, (1935 A. L. J. 113: A.I.R. (22) 1935 ALL. 147) (ubi supra).
17. It would thus appear that there is no conflict between the authority of Ahmad Ullah Khan's case, (1935 A. L. J. 113: A.I.R. (22) 1935 ALL. 147) on the one hand, and Ameer Ali's Mahommedan Law and Radd-ul-Muhtar, on the other, and that the passage in Ameer Ali's Mahommedan Law only expounds further the rule laid down in Ahmad Ullah Khan's case, (1935 A. L. J. 113: A. I. R. (22) 1935 ALL. 147) and deals with its application to a particular set of facts.
18. This conclusion is further supported by the fact that the aforesaid passage in Ameer Ali's Mahommedan Law occurs in a Chapter which is headed as "General Principles of construction." Principles of construction have to be-referred to only when document has to be construed. It follows, therefore, that the rule laid down in the passage refers to the interpretation of the terms of a deed of waqf, and does not lay down any rule to be applied independently of such terms.
19. I have failed to discover that the passage in Ameer Ali's Mahommedan Law was dissented from in Ahmad Ullah Khan's case, (1935 A. L. J. 113 : A.I.R. (22) 1935 ALL. 147) for, after pointing out that the learned Judge of the Court below had relied on a passage in Ameer Ali's Mahommedan Law, based on the authority of Radd-ul-Muhtar, vol. III, p. 670, all that the learned Chief Justice said was, that the learned Judge had expressed his opinion without reference to the particular deed of trust in question. In my opinion this does not amount to a dissent from the rule contained in the aforesaid passage, but only explains that that rule is not to be applied unless the terms of a waqf deed warrant its application.
20. I am of the opinion that the rule of law is well settled that there can be a proportionate reduction only when the beneficiaries stand on an equal footing and when the waqif has not given priority to one as against the other.
21. It is, therefore, necessary to refer to the terms of the waqf deed, under which the appellants claim, in order to arrive at a proper decision in this case.
22. As pointed out in the judgment of my learned brother, the waqif has provided five heads under which the income from the waqf property is to be spent. A consideration of the objects coming under those five heads immediately indicates that they do not stand on an equal footing. The first head of expenditure provides for the payment of Government revenue. It cannot be seriously argued that if the income falls short, there is to be a proportionate reduction in the expenditure to be incurred under this head. The second head of expenditure relates to litigation for preservation of the property and the third relates to the costs of management. There is nothing to indicate that it was intended by the waqif that if the income fell short, the necessary expenses under these heads should be reduced in order to pay the other beneficiaries or to make a balance available for purposes of allowances. It appears to me from the deed of waqf that the waqif desired to give preference to each prior head of expenditure over the subsequent head of expenditure and that, therefore, the rule of proportionate reduction does not apply to this case.
23. The other thing of importance to be noticed in the deed is that the mutawalli has not been given any specified amount annually, but that he has been given the balance of the income after the expenses under the previous five heads have been met. This means that he is to receive what is left after meeting the other expenses, The balance may increase or diminish. If the income had increased, it is admitted on all hands, that the mutawalli alone would have profited by it, There seems to be no reason to suppose that it was intended by the waqif that any other beneficiary should share the loss with him due to the diminution of income without a right to share in the profits.
24. I, therefore, concur with my learned brother in holding that, in this case, the specified amounts payable to the plaintiffs cannot be reduced.
25. By the Court. -- For the reasons recorded in our judgment of date, we allow the appeal and modify the decree of the Court below in the manner indicated in the operative portion of the judgment of Hon'ble Wanchoo J. The parties will receive and pay costs according to their success and failure in all the Courts.